KAMALA KANT CHAKI Vs. BEJOYA KANTA LAHIRI

JUDGEMENT

(1.) The defendants were formerly the tenants of the plaintiffs in respect of a non-transferable ryoti holding. In 1897, the defendants mortgaged the holding byway of conditional sale and put the mortgagee in possession. It is clear from the judgment of the Subordinate Judge that he has found that the defendants then left the village without making any arrangement for the payment of the rent due to the plaintiff. On the 7th Falgun 1306, that is, in the year 1900 one Nabin Nath executed a kabuliyat in the plaintiff s favour for a term of five years, which expired before the present suit was brought. Two days after he acquired the mortgage interest from mesne assignee and he then entered into possession of the holding. He remained in possession till the year 1904 when the defendants brought a suit against him to re-deem the mortgage. In that suit they were successful and upon payment into Court of the sum due upon the mortgage, they were restored to possession. The plaintiff then brought the present suit to recover possession on the footing that the defendants had abandoned the holding and that as against him they had no right to evict Nabin Nath and take possession themselves. The first Court dismissed the suit holding that there had been no abandonment and that the relationship of landlord and tenant between the plaintiff and the defendants had never ceased and still subsisted. The Subordinate Judge in the Court below came to a different conclusion. He found that the evidence established an abandonment of the holding by the defendants in 1894 and upon that basis he made a decree in favour of the plaintiff. The defendants have appealed to this Court.

(2.) The decision before us has turned principally on the effect of Clauses (2) and (3) of Section 87 of the Bengal Tenancy Act. In our opinion, the provisions contained in those clauses do not help the defendants.

(3.) It is true that the plaintiff gave no notice to the Collector under Clause (2) of his intention to treat the holding as abandoned but such a notice is not necessary to make an abandonment complete and effectual. The notice is important for the purpose of "the suit which the tenant is allowed to bring under Clause (3) but is not essential to complete an abandonment; and a landlord who has not given such notice is still at liberty to prove that an abandonment has in fact taken place. As authority, we need only refer to the case of Ram Pershad v. Jawahir 12 C.W.N. 899 at p. 902 : 7 C.L.J. 72 where earlier cases are considered. As there pointed out, the question of abandonment or no abandonment is one of intention to be determined upon the facts of the particular case in which the question arises. In the present cage, the finding of the Subordinate Judge upon that issue is in the affirmative and as we are unable to say that the Subordinate Judge committed any error of law in arriving at that finding, it is now conclusive. If the payment of the mortgage-debt by the defendant in 1904 or 1905 be, so far as it goes, some evidence as to what their intention was in 1894, the Subordinate Judge regarded it as evidence to which in the circumstances, no great weight could be attached and we cannot say that he was wrong in law in so treating it. If they abandoned the holding in 1894, they were not in a position after the plaintiff had re-entered in 1900 to change their minds or their intention and go back to the original state of things.